Grizonic v Suttor; Grizonic v McDonald [2006] NSWSC 1359

Grizonic v Suttor; Grizonic v McDonald [2006] NSWSC 1359

Security for costs is appropriate where the plaintiff is not pursuing the action for his own benefit but for the benefit of creditors, and no evidence exists to show the benefit would revert to him. The Court should cap trustee’s remuneration based on costs assessment but defer any order for payment where there is ongoing dispute about reasonableness of the expenses as between trustee and beneficiary.

Parties
Plaintiff: Claudio Grizonic; First Defendant (6141/03); Third Defendant (2475/05): Suzanne Suttor; Applicant/first Defendant (2475/05): Geoffrey McDonald; Applicant/second Defendant (2475/05): Paul Leroy
Jurisdiction
Australia
Judgment Date
01 December 2006
Procedural Posture
Equity / Ex Tempore Judgment on Notices of Motion; Stay of Proceedings and Variation of Previous Orders
Outcome
Proceedings 2475/05 stayed unless security for costs provided. Variation of trustee remuneration order in 6141/03 to $76,942.12. No order for payment of fees at this stage. Costs reserved.
Legal Topics
Costs, Security for Costs, Trustee's Remuneration, Variation of Orders, Indemnity From Trust Fund
Procedure Trusts and Trustees Costs Security for Costs Trustee's Remuneration Variation of Orders Indemnity From Trust Fund

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Parties

Claudio Grizonic

Plaintiff

Suzanne Suttor

First Defendant (6141/03); Third Defendant (2475/05)

Geoffrey McDonald

Applicant/first Defendant (2475/05)

Paul Leroy

Applicant/second Defendant (2475/05)

Procedural Posture

Equity / Ex Tempore Judgment on Notices of Motion; Stay of Proceedings and Variation of Previous Orders

Legal Issues

  1. 1 Whether security for costs should be ordered against the plaintiff under UCPR 42.21(1)(e)
  2. 2 Whether order fixing trustee’s remuneration should be varied to accord with subsequent costs assessment
  3. 3 Whether trustees are entitled to payment of their remuneration and expenses from the trust fund at this stage

Ratio Decidendi

Security for costs is appropriate where the plaintiff is not pursuing the action for his own benefit but for the benefit of creditors, and no evidence exists to show the benefit would revert to him. The Court should cap trustee’s remuneration based on costs assessment but defer any order for payment where there is ongoing dispute about reasonableness of the expenses as between trustee and beneficiary.

Court Disposition

Proceedings 2475/05 stayed unless security for costs provided. Variation of trustee remuneration order in 6141/03 to $76,942.12. No order for payment of fees at this stage. Costs reserved.

Orders

  • In 2475/05, proceedings stayed until plaintiff provides security for costs in the sum of $20,000.
  • In 6141/03, order fixing applicant trustees' remuneration varied to an amount not exceeding $76,942.12.